Riggsby v. Commonwealth

• Decision Date: 20 December 1929
• Parties: RIGGSBY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

22 S.W.2d 624

232 Ky. 226

RIGGSBY v. COMMONWEALTH.

Court of Appeals of Kentucky

December 20, 1929

Appeal from Circuit Court, Boyd County.

Elbert Riggsby was convicted of conspiracy, and he appeals. Affirmed.

Waugh &amp Howerton, of Ashland, for appellant.

J. W Cammack, Atty. Gen., and Samuel B. Kirby, Asst. Atty. Gen for the Commonwealth.

THOMAS C.J.

The appellant and defendant below, Elbert Riggsby, was indicted by the grand jury of Boyd county under section 1241a1 of the 1922 edition of Carroll's Kentucky Statutes, and in which he was accused of conspiring with Fred Galloway, Wade Galloway, Hy Walker, and John Blankenship for the purpose of feloniously breaking and entering the storehouse of the Hampton Grocery Company, a corporation, and stealing therefrom goods, wares, and merchandise, and which offense was committed pursuant to such conspiracy. Under his plea of not guilty he was convicted at his trial in the same court, and punished by confinement in the penitentiary for a period of two years, and, from the order of the court overruling his motion for a new trial, and the judgment pronounced on the verdict, he prosecutes this appeal.

The section under which the indictment was returned first makes it a felony for one to conspire with another or others to commit certain enumerated acts, and then says, "or to do any feloneous act," which language we interpreted in the case of Phelps v. Commonwealth, 209 Ky. 318, 272 S.W. 743, to include a conspiracy to commit any felony, and that the "ejusdem generis" doctrine did not apply so as to confine the application of the section to the conspiring to do kindred or like acts first enumerated in it. Under the principles of that opinion, this prosecution is maintainable.

The only grounds urged by counsel for reversal are: (1) That the evidence of the commonwealth was insufficient to authorize the conviction, in that the testimony of the accomplice witness (one of the alleged conspirators) was not legally corroborated so as to sustain the conviction under the provisions of section 241 of the Criminal Code of Practice; (2) that the sheriff having charge of the jury was not sworn at the time the case was submitted when the jury retired to its room for a consideration thereof; and (3) improper remarks made by prosecuting counsel in his closing argument to the jury-and which will be disposed of in the order named.

1. Fred Galloway, one of the alleged conspirators, and defendant lived in the same block with an unoccupied and vacant dwelling between them. There was also a vacant dwelling on the opposite side of defendant's residence in that same block, and, at the end of it, next to Galloway's residence, the storehouse of the Hampton Grocery Company was located. The goods taken from the Grocery Company were about 2,500 pounds of sugar, the larger portion of which was Arbuckle's white sugar, in sacks, and a small portion was brown sugar. Blankenship, the accomplice witness, introduced by the commonwealth, testified that, in the afternoon preceding the robbery of the store, Fred Galloway approached him and stated that he knew a person who would buy all the sugar that they would or could take from the store and whom he stated was the defendant, the close neighbor of Galloway. The two later went to defendant's home and had a conversation with him, in which it was agreed that the robbery would be committed that night and defendant would take the fruits thereof at 3 cents per pound.

Some time before 9 o'clock, when the robbery was committed, Galloway and Blankenship again visited defendant at his residence, and the robbery was completely planned; the defendant suggesting where the stolen sugar should be deposited, which was on a vacant lot nearby, and that he would procure a truck and haul it and put it in the vacant house next to his residence. He also suggested how the store could be gotten into with the aid of a ladder reaching to a window on the second story of the building, and he likewise suggested where the ladder could be obtained. Defendant immediately departed for the truck, and before he returned with it the store had been robbed and the sugar deposited at the point agreed upon, and was later moved by him with the truck to the vacant house, in which a portion of it was found by the officers the next day, and it was completely identified as coming from the store of the Hampton Grocery Company.

The next morning, between 3 and 4 o'clock, defendant appeared, driving an automobile, at the residence of W. M. Sprouse across the Ohio river, and about 12 miles from the store that was robbed, and, after waking Mr. Sprouse, the object of the visit was made known, and which was that defendant had a large quantity of sugar in his automobile that he proposed to sell to Sprouse, and which the latter bought, and it was Arbuckle's white sugar, and contained marks enabling the operators of and the clerks in the store to identify it as a part of the stolen goods.

After defendant and his alleged coconspirators were arrested and put in jail, defendant occupied a cell on one story, and just above him Blankenship and Fred Galloway were imprisoned, and the accomplice witness testified that defendant, while the parties were so situated, delivered to him a note addressed to Fred Galloway, in which defendant stated, in substance, that he thought the commonwealth would introduce a witness from Ohio who would testify about his selling the sugar as above described on a day after the robbery, but that he (defendant) was going to swear that the sale so made by him was on February 1, 1929, which was four days before the robbery of the store, it having occurred on February 5, 1929. He also stated in that letter other things to which he was going to swear at his trial, and he wanted Blankenship and Galloway to corroborate him and urged them to "listen close to what I swear so you can swear the same and tell the same tail." That letter was unsigned but the witness, not only testified that it was delivered to him by defendant, but he likewise identified the handwriting of defendant, with which he stated he was acquainted. The sale of the sugar to Sprouse in Ohio was testified to by both himself and his wife.

Defendant denied the conspiracy or any knowledge of the robbery, but he admitted selling the sugar to Sprouse, stating, however, that it was on February 1, 1929, four days...